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COVID-19 Response Emergency Amendment Act Section-by-Section Summary

On March 17, the Council of the District of Columbia adopted the COVID-19 Response Emergency Amendment Act of 2020 (“Emergency Act”). The Emergency Act, among other things, provides temporary protections for workers, relief for businesses, and authority and flexibility for the District government during periods of public and public health emergencies, which Mayor Muriel Bowser declared on March 11. The Council is expected to take additional action to respond to the emergency at its next scheduled meeting on April 7.

TITLE I: LABOR AND WORKFORCE PROTECTIONS

Section 101: Wage Replacement for Affected Employees

  • “Affected employees” are those who have become unemployed due to the public health emergency, such as quarantine, ceased or reduced employer operations, or reduction in revenue.
  • “Affected employees” are eligible for unemployment compensation regardless of whether their employer has provided a date certain for the employee to return to work or whether the employee has a reasonable expectation of continued employment with the current employer.
  • Benefits paid to affected employees will not be charged against the employer’s experience rating account.

Section 101: Employment Protections

  • Under the D.C. Family and Medical Leave Act, the one-year employment and 1,000-hour work requirements do not apply to an employee who has been ordered or recommended to quarantine or isolate.
  • An employee who is unable to work as a result of the emergency is entitled to Declaration-of-Emergency (DOE) Leave.
  • A recommendation from the federal or District government or medical professional to quarantine or isolate shall serve as certification for the leave.
  • DOE leave applies to all employers regardless of the number of employees.

 

TITLE II: BUSINESS RELIEF

Section 201: Delayed Hotel Property and General Sales Tax Remittances

  • The deadline to pay the first installment of property taxes for hotel property is extended to June 30, 2020.
  • The deadline for businesses, except hotels and motels permitted to defer property tax, to pay sales and use tax for periods ending in February and March is extended to July 20, 2020.

Section 202: Public Health Emergency Small Business Grant Program

  • The Mayor may issue grants to “eligible small businesses” that demonstrate financial distress caused by the emergency for employee wages and benefits, operating costs, and repayment of federal Small Business Administration loans.
  • “Eligible small businesses” are those eligible for Small Business Enterprise (“SBE”) certification by the Department of Small and Local Business Development (“DSLBD”), nonprofit entities, and independent contractors and self-employed individuals that are ineligible for unemployment insurance.
  • A business is eligible for SBE certification if it is: (1) a Local Business Enterprise, (2) independently owned and operated, and (3) is either a small business concern under the federal Small Business Act or has average annualized gross receipts within limits set by DSLBD. More information on certification eligibility is available through DSLBD.

Section 203: Restaurant Delivery

  • Registered restaurants and taverns may sell beer or wine in closed containers for carryout or for delivery to the homes of District residents, so long as the order includes prepared food items and the restaurant or tavern has received written authorization from the Alcoholic Beverage Regulation Administration (“ABRA”).

Section 204: Corporate Filing Extension

  • The deadline for business entities to file the first biennial report for 2020 with the Department of Consumer and Regulatory Affairs (“DCRA”) has been extended to June 1, 2020 from April 1, 2020.

TITLE III: PUBLIC HEALTH, SAFETY, AND CONSUMER PROTECTION

Section 301: Amendments to the District of Columbia Public Emergency Act

  • The Mayor may enter into emergency procurements subsequent to Council notice, waive application of laws administered by the Department of Insurance, Securities, and Banking (“DISB”), and exercise personnel flexibility.
  • The Mayor may extend the current emergency declarations by 30 days and then in 15-day periods thereafter.
  • The Mayor may revoke, suspend, or limit the license, permit, or certificate of occupancy of a person or entity that violates an emergency executive order.

Section 302: Amendments to the Department of Insurance and Securities Regulation Establishment Act

  • The DISB Commissioner may issue emergency rulemakings, orders, or bulletins applying to regulated entities to address, among other issues, the submission of claims, grace periods for payment, and temporary postponement of cancellations, nonrenewals, or premium increases.

Section 303: Public Benefits Extension and Continued Access

  • The Mayor may extend the eligibility period for individuals receiving benefits, extend the timeframe for determinations of new applications, and take other actions as appropriate to support continuity of, and access to, any public benefit program until 60 days after the end of the public health emergency.

Section 304: Price Gouging and Stockpiling

  • It is unlawful for an entity or individual to charge more than the normal average retail price for any merchandise or service.
  • It is unlawful for an entity or individual to purchase goods designated by the federal or D.C. government as necessary, in quantities greater than those specified by the federal or D.C. government.

Section 305: Disconnection of Electric Service

  • An electric company may not disconnect service for nonpayment during a public health emergency or for 15 calendar days thereafter.

Section 306: Disconnection of Gas Service

  • A gas company may not disconnect service for nonpayment during a public health emergency or for 15 calendar days thereafter.

Section 307: Disconnection of Water Service

  • No water supply may be shut off for nonpayment during a public health emergency or for 15 calendar days thereafter.

Section 308: Eviction Prohibition

  • The time for service of a summons in a proceeding for restitution of possession is tolled, effectively prohibiting the initiation of eviction proceedings against commercial and residential tenants.
  • A housing provider may not evict a tenant.
  • Note: By the March 15 Order of the Chief Judge of the D.C. Superior Court, all evictions of commercial and residential tenants on or before May 1 are stayed, and all hearings in the Landlord and Tenant Branch are continued until new dates are set.

Section 309: Prescription Drugs

  • A licensed D.C. pharmacist may dispense a refill prior to the expiration of the waiting period.

Section 310: Extension of Licenses and Registrations; Waiver of Deadlines

  • Within 45 days of the end of a public health emergency, the Mayor may:
    • Extend the validity of a license, registration, permit, or authorization;
    • Waive deadlines for filings and fees associated with the failure to timely renew or submit; or
    • Extend or waive the deadline by which action is required by the executive branch, or by which approval or disapproval is deemed to have occurred based on inaction by the executive branch.

Section 311: Homeless Services

  • Contingency provisions for the Homeless Services Reform Act are established.

Section 312: Residential Tenants Rights

  • Deadlines for tenants and tenant organizations to exercise Tenant Opportunity to Purchase Act and Rental Housing Act rights are extended to 30 days after the end of the emergency period.
  • A housing provider may not impose a late fee on a tenant.

Section 313: Good Time Credits

  • The Department of Corrections may award additional good time credits to effectuate the immediate release of persons sentenced for misdemeanors, consistent with public safety.

Section 314: United Medical Center

  • The Fiscal Management Board trigger for the Not-for-Profit Hospital Corporation for Fiscal Year 2020 is removed.

TITLE IV: EDUCATION

Section 401: Amendments to the Student Promotion Act

  • The Chancellor may waive requirements to attend summer school for a student who fails to meet promotion criteria.

Section 402: Amendments to the Education Research Practice Partnership Establishment and Audit Act

  • The meeting of the education research practice partnership review panel is postponed until 7 business days after the end of the emergency.

TITLE V: PUBLIC MEETINGS

Section 501: Advisory Neighborhood Commission Meetings

  • Advisory neighborhood commissions are not required to meet, and they may meet remotely.

Section 502: Other Boards and Commissions

  • The requirement for boards, commissions, and public bodies to meet is waived, unless the Mayor determines it is necessary or appropriate to meet.
  • The review period for nominations transmitted to the Council is tolled.

Section 503: Freedom of Information Act (“FOIA”)

  • The time to respond to a FOIA request is tolled.

Section 504: Amendments to Open Meetings Act

  • An agency may comply with open meetings requirements by allowing the public to view or hear a meeting live or as soon as reasonably practicable thereafter.

TITLE VI: COUNCIL AUTHORITY

Section 601: Budget

  • The deadline for the Mayor to submit the fiscal year 2021 budget to the Council is moved to May 6, 2020.

Section 602: Virtual Meetings

  • The Council may meet virtually.

Section 603: Grant Budget Modifications

  • Grant budget modifications received by the Council as of March 17, 2020 are deemed approved.

 

This material is for informational purposes only and should not be relied on for legal advice.  For legal assistance with an employment or business matter, contact our Firm through the “Contact Us” page on our website, or calling us at 202-795-9999. 

COVID-19 Emergency Relief for D.C. Businesses and Employees

On March 17, 2020, the Council of the District of Columbia adopted the COVID-19 Response Emergency Amendment Act of 2020 (“Emergency Act”).  The Emergency Act, among other things, provides relief for D.C. employees and businesses during periods of public and public health emergencies, which Mayor Muriel Bowser declared on March 11.

Unemployment Compensation.  Affected employees are eligible for unemployment compensation regardless of whether their employer has provided a date certain for the employee to return to work or whether the employee has a reasonable expectation of continued employment with the current employer.  Benefits paid to affected employees will not be charged against the employer’s experience rating account.  Affected employees are those who have become unemployed due to the public health emergency, such as quarantine, ceased or reduced employer operations, or reduction in revenue.

Family and Medical Leave.  The one-year employment and 1,000-hour work requirements do not apply to an employee who has been ordered or recommended to quarantine.  An employee who is unable to work as a result of the emergency is entitled to Declaration-of-Emergency (DOE) Leave.  A recommendation from the federal or District government or medical professional to quarantine shall serve as certification for the leave.  DOE Leave applies to all employers regardless of the number of employees.

Sales Tax Payment Relief.  The deadline for businesses, except hotels, to pay sales tax for periods ending in February and March is extended to July 20, 2020.

Small Business Grants.  The Department of Small and Local Business Development (DSLBD) may issue grants to eligible small businesses that demonstrate financial distress caused by the emergency for employee wages and benefits, operating costs, and repayment of federal Small Business Administration loans.

Biennial Reports.  The deadline for business entities to file the first biennial report for 2020 with the Department of Consumer and Regulatory Affairs (DCRA) has been extended to June 1, 2020 from April 1, 2020.

Council Chair Phil Mendelson stated that this is the first of several legislative measures to respond to this fast-moving situation.  We will continue to monitor the District’s response.

 

This material is for informational purposes only and should not be relied on for legal advice.  For legal assistance with an employment or business matter, contact our Firm through the “Contact Us” page on our website, or call us at 202-795-9999. 

Overview of the Fair Credit Reporting Act

The Fair Credit Reporting Act (“FCRA”), promotes the accuracy, fairness, and privacy of information in the files of consumer reporting agencies.  The law’s intent is to protect consumers from the willful or negligent inclusion of inaccurate information in their credit report.  FCRA regulates the collection, dissemination and use of consumer information. Download this slideshow to learn more about employers’ and employees’ rights and responsibilities under the FCRA.

This material is for informational purposes only and should not be relied on for legal advice.  For legal assistance with an employment matter, contact our Firm through the “Contact Us” page on our website, or call us at 202-795-9999. 

Final Rules Issued on Universal Paid Leave Employer Contributions

On June 21, 2019, the D.C. Department of Employment Services’ (“DOES”) rules on employer contributions  under the Universal Paid Leave Amendment Act (the “Act”) went into effect. DOES began collecting the .62% tax on wages of covered employees from covered employers on July 1. Claimants will be able to begin receiving benefits on July 1, 2020. It is expected that DOES will issue proposed rules on claims administration this year.

Employer Registration. Each covered employer with 5 or more covered employees must register through the DOES online portal, and covered employers with fewer than 5 employees may notify DOES that they do not have computer access and request a paper form. Each employer can use the portal to update its information, submit wage reports, and make payments.

Opt-In for Self-Employed Individuals. A self-employed individual may opt into the program during an open enrollment period: the first 90 days of program commencement in 2019, November and December of 2020 and each year thereafter, or within 60 days of beginning self-employment in the District. To opt in, an individual must provide a business license, occupational license, or other documentation that demonstrates self-employment in the District.

Opt-Out of Self-Employed Individuals. A self-employed individual may only opt out during an open enrollment period, and may request removal from the program in certain circumstances. An individual may opt into the program after opting out in an open enrollment period, but is not eligible for benefits after the first year, and is barred from opting in for 5 years if the individual opts out two more times. If an individual opts in after the first open enrollment period for which the individual was eligible, the individual may not opt out for three years.

Wages. For purposes of the Act, “wages” has the same definition as it does under the District’s unemployment compensation law, except that it also includes self-employment income by an individual who has opted in. In general, “wages” means all remuneration for personal services, including gratuities.

Contributions by Covered Employers to the Universal Paid Leave Implementation Fund. Each covered employer must pay an amount equal to 0.62% of wages of each of its covered employees to the Universal Paid Leave Implementation Fund. Payments are due not later than the last day of the month following the close of each calendar quarter. When a covered employee performs services in employment for 2 or more covered employers during the same period, each covered employer must make contributions on the basis of each covered employer’s payments to the covered employee. Late payments are subject to interest and penalties.

Collection Procedures. Collection procedures for failure to timely report wages or pay owed contributions are similar to those applicable to unemployment insurance contributions. If an employer or and self-employed individual disagrees with DOES’s determination of the failure to file a report or pay contributions, an administrative appeal may be filed within 30 days of receiving notice of the failure to file or pay. One administrative appeal is permitted for each report due or contribution owed.

Online Portal. All DOES communications with covered employers and self-employed individuals must be through the online portal, or another format approved by DOES.

Employer Responsibilities. Each covered employer must maintain a DOES-provided paid leave program notice at each worksite in a conspicuous place. A worksite is a single physical location where business is conducted, or if employees are physical dispersed, the location where covered employees report each day. Each covered employer also must provide the notice to employees within 30 days of hiring, annually, and when the employer receives direct notice from the employee that leave for a qualifying event is needed. An employer may establish compliance with this requirement by sending a digital notice to employees, so long as the employer retains email receipts or signed statements acknowledging delivery.

Recordkeeping. Covered employers must keep records required for the program for at least 3 years and make them available to DOES upon request. Records include:

  • Name and Social Security or tax identification number of each covered employee
  • Beginning and ending dates of each pay period
  • Wages paid each pay period
  • Method of payment
  • Employee earnings
  • Dates wages were paid
  • Dates of parental, medical, and family leave taken
  • Copies of employee notices of leave furnished to employer
  • Copies of all written notices given to employees as required by the program
  • Documents describing employee benefits
  • Records of disputes between the employer and employee regarding the program.

This material is for informational purposes only and should not be relied on for legal advice.  For legal assistance with an employment matter, contact our Firm through the “Contact Us” page on our website, or calling us at 202-795-9999. 

D.C. Circuit Broadens Joint Employment Test Under NLRA

Whether a business is an “employer” of a particular employee may have significant consequences for its obligations under federal and D.C. law.  However, when a business is one of several that have a relationship with an employee, it is not always clear whether that business is an employer. In these cases, it is necessary to determine whether the business is a “joint employer” for purposes of applicable law. In a recent decision, the U.S. Court of Appeals for the District of Columbia Circuit (“D.C. Circuit”) attempted to clarify the joint employment analysis under the National Labor Relations Act (“NLRA”).

 

What is joint employment?

Joint employment issues often arise under the NLRA, which governs collective bargaining. The NLRA specifies only that an employer “includes any person acting as an agent of an employer, directly or indirectly” 29 U.S.C. § 152(2). The Supreme Court has interpreted this to require an entity to “possess[] sufficient control over the work of the employees to qualify as a joint employer” Boire v. Greyhound Corp., 376 U.S. 473, 481 (1964).

The courts and the National Labor Relations Board (“NLRB”) have narrowed the test, making it easier for a putative employer to show that it is not a joint employer. However, the D.C. Circuit’s December 28, 2018, decision in Browning-Ferris Industries of California, Inc. v. NLRB may steer the test in favor of employees.

 

Joint employment has previously required only actual, direct, and immediate control.

For many years, courts held that two businesses are joint employers if they “exert significant control of the same employees” by “shar[ing] or co-determin[ing] those matters governing essential terms and conditions of employment NLRB v. Browning-Ferris Indus. of Pa., Inc., 691 F.2d 1117, 1124 (3d Cir. 1982).  Later NLRB decisions narrowed the analysis to require “(i) actual control, as opposed to the right to control, and (ii) direct and immediate control, not indirect control.”  And in September 2018, the NLRB proposed a rule that would require a putative joint employer to “possess and actually exercise substantial direct and immediate control over the employees’ essential terms and conditions of employment in a manner that is not limited and routine.”

 

The D.C. Circuit now permits consideration of unexercised and indirect control.

In the latest Browning-Ferris decision, however, D.C. Circuit upheld a broader joint employment analysis considering “both (i) an employer’s authorized but unexercised forms of control, and (ii) an employer’s indirect control over employees’ terms and conditions of employment.”  It reasoned that this test is grounded in common-law rules of agency, which underpin the NLRA. The Court declined to require actual or direct control to be the only or “most important” part of the analysis.

 

The joint employment test will likely remain uncertain.

The D.C. Circuit’s decision is significant not only because it establishes a broader test for joint employment, but because it strongly suggests that the NLRB’s proposed rulemaking is impermissibly narrow. “The Board’s rulemaking,” the Court noted, “must color within the common-law lines identified by the judiciary.” Against this backdrop, the definition of joint employment may remain in flux.

 

This material is for informational purposes only and should not be relied on for legal advice.  For legal assistance with an employment matter, contact our Firm through the “Contact Us” page on our website, or calling us at 202-795-9999.